Sk. Jumman @ v. State of Odisha

ORDER 05.02.2025 Order No.

Heard learned counsel for the Petitioner and learned counsel for the State.

This is the fourth journey application of the Petitioner is an accused in connection with T.R. Case No.28 of 2021 pending on the file of learned 1st Addl. Sessions Judge-cum-Special Judge, Khurda arising out of S.T.F. P.S. Case No.15 of 2021 for commission of offence alleged under Sections 21(C)& 29 of the NDPS Act.

Learned Counsel for the Petitioner submits that that the Petitioner in custody since

24.04.2021 and the basis of implication is on account of statement of co-accused statement and the allegation against the present Petitioner and the co-accused that they are involved transportation of contraband to the tune of 1 Kgs. 54 grams (brown sugar). Learned Counsel for the Petitioner seeks release of the Petitioner on two grounds (i) procrastination of trial (ii) official witnesses have not supported the prosecution.

Learned Counsel for the State opposes such prayer in view of the bar contained under Section 37(1)(b)(ii) of the NDPS Act. It is his further submission that this Court while rejecting the bail application of the Petitioner by judgment dated

05.01.2023 in BLAPL No.7354 of 2022 and thereafter by order dated 02.02.2024 in BLAPL No.11477 of 2023 have taken the note of all the contentions of the Petitioner relying on judgment of the Apex Court in case of Tofan Singh vrs. State of Tamil Nadu, reported in (2020) 80 OCR (SC) 641 and Rabi Prakash Vr. State of Odisha; Live Law (SC) 533. Hence there is no change in circumstances for which the application does not merit consideration.

Learned counsel for the Petitioner Ms. Meheta submits Taking account submissions that the trial is lingering because one of the co-accused (Bijay Mohanty) who was released on bail has not appeared and the case has to be split up against the Petitioner. 5A. Learned Counsel for the Petitioner submits that for the fault of the co-accused, the Petitioner right for speed trial a facet of Article-21 of the Constitution cannot be marginalized. It further submitted that since the prosecution has sought to rely on 24 witnesses and admittedly only five witnesses have examined, as borne out from the court of the report of learned Court in seisin, the trial is likely to linger further. Hence it is submitted that on the ground of delay cannot be brushed aside. 5B. It is apt to note that she also drew the attention of this Court to the depositions of the P.Ws.1 and 5, official witnesses who have turned hostile. In the said regard, it is the submission of the learned Counsel for the State so far as deposition of the P.W.1 is concerned, the same was taken into account while rejecting the earlier bail application of the Petitioner and as such same ought not to be weigh with this Court while considering the present bail application.

It is noted that the last bail application of the Petitioner was rejected by order dated 02.02.2024. The other official witness to seizure, P.W.5 was examined on 24.12.2024 and referring to the same, learned Counsel for the Petitioner relying on judgment of Apex Court in the case of Ankur Chaudhary vrs. State of Madhya Pradesh in SLP (Crl.) No.4648 of 2024 dated 28.05.2024, submits that so far as the Petitioner is concerned, he is on better footing since the official witnesses have not supported the case of the prosecution.

Since the learned Trial Court is in seisin of the matter, this Court refrains of making any comment regarding the import of the official witnesses not supporting the prosecution.

Considering the nature of evidence on record, period of custody from 24.04.2021, the delay in trial as noticed, this Court directs that the Petitioner shall be released on bail on such terms to be fixed by the learned Court in seisin.

It is submitted on instruction that the Petitioner was arraigned as an accused in Jaleswar P.S. Case No.165 of 2005 under Section-379/34 of the IPC. Before releasing the Petitioner, learned Court seisin is requested to verify as to whether the Petitioner has been cited as an accused in any other case apart from the said Jaleswar P.S. Case No.165 of 2005. If it is found that he is involved in any other case, this order shall not be given effect to. Additionally, it is directed that the Petitioner shall appear before the jurisdictional police station twice every week on such date and time to be fixed by the learned Court in seisin till conclusion of trial in addition to the appearing before the learned Trial Court on each date of Trial. Certification of such appearance before the Police Station shall be submitted to the Court in seisin.

Accordingly, the BLAPL stands disposed of.

Urgent certified copy of this order be granted as per rules. (V. NARASINGH) Narayan Judge Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 07-Feb-2025 13:59:57